Schedule 11: Miscellaneous amendments of 1993 Act

239.     Paragraph 2. Section 9(3) of the 1993 Act currently permits the Secretary of State and the ORR to include a condition when granting a operating licence which requires the licence holder to provide information or documents which the Secretary of State or the ORR need to carry out their functions under Part 1 of the 1993 Act. This amendment provides that such a condition may in future also cover information or documents which are required in relation to the exercise of functions under Part 4 of this Bill (network modifications). This reflects the fact that the closure provisions in Part 1 of the 1993 Act are repealed by the Bill, and replaced with the network modification provisions in Part 4 of the Bill.

240.     Paragraph 3. References in section 17 and 19 to a person operating a railway facility "on behalf of the Secretary of State" are, following the amendments to these sections in Schedule 1 Paragraph 12, to be construed as references to a person operating a railway facility under an agreement or arrangement with either the Secretary of State or the Scottish Ministers where the Secretary of State or the Scottish Ministers have a duty or power to secure the operation of that facility. This amendment provides that the relevant duty or power may exist in either Part 1 of the 1993 Act or in Part 4 of the Bill. This reflects the fact that the closure provisions in Part 1 of the 1993 Act are repealed by the Bill, and replaced with the network modification provisions in Part 4 of the Bill.

241.     Paragraph 4. This paragraph revises section 30 of the 1993 Act to take account of the Network Modification sections in Part 4 of the Bill that replace the closure provisions in section 37 to 49 of the 1993 Act.

242.     Paragraph 5. This paragraph amends section 50 of the 1993 Act so that the Secretary of State and the Scottish Ministers are excluded from liability for breach of statutory duty arising from Part 1 of the 1993 Act in place of the SRA. This reflects the revised procedures for Network Modifications in the Bill.

243.     Paragraph 6. This provision enables the Secretary of State and the Scottish Ministers to enter into agreements and arrangements under which they give undertakings as to the exercise of their functions relating to rail franchising, where they do so for the purpose of encouraging investment in railways.

244.     Paragraph 7. This paragraph revises section 55 of the 1993 Act to take account of the Network Modification sections in Part 4 of the Bill that replace the closure provisions in sections 37 to 49 of the 1993 Act.

245.     Paragraph 8. This paragraph amends the provisions in the 1993 Act governing the ability of the Secretary of State to provide financial assistance in relation to companies in railways administration. In particular, it provides that the Secretary of State may give an indemnity to a railways administrator (and certain persons connected with him) in respect of liabilities, loss and damage incurred in the exercise of his functions. It also provides that the Secretary of State may direct the relevant company in railways administration to repay sums which are paid under the terms of such an indemnity, except where the payment was made under the indemnity to cover a liability of the railways administrator to that company. Clause 49, which inserts a new section 64A into the 1993 Act to give the Scottish Ministers similar financial assistance powers, also permits such indemnities to be given.

246.     Paragraph 9. This paragraph amends the duty of the ORR to maintain a public register under section 72 of the 1993 Act. The purpose of these amendments is to ensure that the ORR duties are appropriate in view of the repeal of the closure provisions in the 1993 Act and their replacement with the network modification provisions in Part 4 of the Bill.

247.     Paragraph 10. This paragraph amends the duty to maintain a public register which, by virtue of Schedule 1 Paragraph 30 of the Bill, shall transfer from the SRA to the Secretary of State. The purpose of these amendments is to ensure that the duties are appropriate in view of the repeal of the closure provisions in the 1993 Act and their replacement with the network modification provisions in Part 4 of the Bill.

248.     Paragraph 11(a) refers to definitions in the 1993 Act inserted by clause 48(1) and schedule 13(4) of this Bill.

249.     Paragraph 11(b) replaces the existing definition of bus substitution service in section 45(2) of the 1993 Act.

250.     Paragraph 12. These amendments to section 136 of the 1993 Act provide that the Secretary of State and the Scottish Ministers are the competent authority for the purposes of the railways financial status regulations (Council Regulation (EEC) No 1192/69 on common rules with respect to the financial status of railway undertakings). They also provide that the Secretary of State, the Scottish Ministers, the NAW and Passenger Transport Executives are, where appropriate, the competent authority for the purposes of the public service obligations regulations (Council Regulation (EEC) No 1191/69 on public service obligations in transport, as amended by Council Regulation (EEC) No 1893/91).

251.     Paragraph 13 ensures that whenever the Scottish Ministers exercise the powers that the Bill gives them to make secondary legislation by means of regulations or an order under the 1993 Act the secondary legislation is made by means of a Statutory Instrument. It also gives the Scottish Ministers the ability to make incidental, supplemental, consequential or transitional provisions in the relevant Statutory Instrument in relation to the subject matter of the order or regulations. This is so as to ensure that the Scottish Ministers have sufficient flexibility to implement their regulations or orders in the most practicable way. This amendment to section 143 of the 1993 Act also gives the Scottish Ministers the discretion to use their powers to apply orders and regulations only in certain cases or to apply them differently depending on the case in question. These provisions are intended to give the Scottish Ministers a reasonable degree of flexibility to exercise their relevant powers in a way that reflects the reality of the situation rather than being unduly constrained by the narrow interpretation of the power they are exercising. These provisions already apply to the Secretary of State under section 143 of the 1993 Act.

252.     Paragraph 14 amends section 145 of the 1993 Act, which provides for a general prohibition on the disclosure of information which relates to the affairs of any individual or business and which has been obtained under that Act. The amendments relate to the exceptions to the general prohibition.

253.     The amendments in sub-paragraph (1) are intended to ensure that the exceptions are extended so as to cover the disclosure of information which is made for the purpose of assisting the Secretary of State or the Scottish Ministers in the exercise of their railways functions (including, but not limited to, their statutory functions under the 1993 Act, the Transport Act 2000, and this Bill). The intention behind extending the exception in this way is to ensure that the Secretary of State and the Scottish Ministers can receive information which will help them to exercise their railway functions, notwithstanding the general prohibition on disclosing sensitive information obtained under the 1993 Act.

254.     The amendment in sub-paragraph (2) is a consequential amendment resulting from the abolition of Rail Passengers' Committees in clause 19.

PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER IMPLICATIONS

255.     Clause 54 confirms that any new expenditure incurred by Government as a result of this Bill will be paid for out of the money provided to the Department by Parliament.

256.     Devolution will lead to a change in spending pattern. The overriding principle is that devolution leaves none of the parties in a better or worse financial position after devolution than they would have been had devolution not occurred.

257.     The Department for Transport currently pays a grant in aid to the SRA which includes funding for its own running costs. With the abolition of the SRA, there should be opportunities to reduce these running costs through the reduced complexity of the new arrangements. The new industry structure should also bring efficiency gains where a function which was previously split between bodies is brought into one. It is likely that the new approach, and the efficiencies from merging functions from the SRA to other bodies, will result in a reduction in total public sector manpower. These effects cannot be quantified at this stage.

258.     Estimated efficiency savings from disbanding the regional Rail Passengers Committee network are £1.5m per annum. Some of this is likely to be offset by transitional and redundancy costs for the SRA and RPC and by re-focussing the RPC's work. But these will be outweighed by longer term savings from more efficient working under the new structure.

259.     The new iterative process in relation to access charges reviews between the Secretary of State for Transport (or the Scottish Ministers) and the ORR should help to ensure outputs and public expenditure are properly balanced. The new process is intended to minimise the risk of Government spending more than it can afford, as such overspending is possible under the current process.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

260.     The section above (public sector financial cost and public sector manpower implications) details the effects of the Bill on the public sector. The RIA indicates that the Bill will also not create a large burden or adverse effects on small business, charities or the voluntary sector, nor will it distort competition.

261.     The main positive changes should be increased clarity, more effective incentives and decision-making. The main additional costs will come from transition costs, although these are not considered excessive. Such costs are regarded as likely to be outweighed by the benefits brought by the Bill's proposals.

262.     The full RIA can be obtained from Dominic Hayzelden, Zone 3/34, Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR, or from dominic.hayzelden@dft.gsi.gov.uk.

EUROPEAN CONVENTION ON HUMAN RIGHTS

263.     The provisions in the Bill are compatible with the Convention.

TERRITORIAL APPLICATION: WALES (SEE ALSO ANNEX A)

264.     The general effect of the Bill on the NAW is to extend its rail powers. The Bill will give the Assembly a new role in making decisions about franchises that serve Wales.

265.     In certain cases this takes the form of a joint role with the Secretary of State, where the franchises provide services that operate wholly within Wales or include such services ("Wales-only services"). At present this involves one franchise, Wales and Borders, operated by Arriva Trains Wales. The NAW will be a joint party to the franchise agreement and will be given the power to provide financial assistance to the franchisee. In other cases it will give the NAW the right to be consulted about proposals for franchises that provide services that call in Wales, but to which the NAW will not be a joint party (for example, the replacement Greater Western franchise may fall within this category).

266.     The NAW's powers to give financial assistance will extend to the ability to provide funding to any railway operator (including operators of passenger services, freight services and Network Rail) for the purposes of improving the provision of services and facilities for Wales.

267.     The Bill extends the existing powers of the NAW to provide assistance to freight operators under schemes to support the development of freight services and facilities in Wales. At present the NAW can provide such support in accordance with a scheme specified by the Strategic Rail Authority. In future, the NAW will be able to make its own schemes, or provide support in accordance with a scheme specified by the Secretary of State (or both).

268.     As it will become a statutory funder of railway services, the NAW will be given a new power to propose that services be closed in accordance with the closure procedures set out in the Bill.

269.     To support its new responsibilities, the NAW will have the right to be consulted by the Secretary of State about the guidance he gives to the Office of Rail Regulation about the exercise of its role as the independent economic regulator for the GB railway network. It will also have a new power to appoint a member of the rail passenger consumer body, the Rail Passengers' Council.

TERRITORIAL EXTENT

270.     The Bill extends to England, Scotland and Wales only.

COMMENCEMENT

271.     Section 59 and Section 55(1) will come into force on Royal Assent. All the remaining provisions will be commenced by Statutory Instrument on such dates as the Secretary of State may decide. Different dates may be appointed for different purposes.

Annex A

Provisions affecting the Powers of NAW

Annex B

List of Acronyms